POLAVARAPU SUBBAIAH Vs. PUTLA SUBBARAYUDU

JUDGEMENT

(1.) (1)

(2.) THIS batch of revision cases raises an identical question of law for determination and can be conveniently disposed of in a common Judgement as was indeed done by thelower court. (2) The facts which have given rise to these revision cases may be briefly stated. The petitioner here in was adjudged an insolvent in i. P. No. 39 of 1955 on the file of the Sub-Court, Ongole. The order of adjudication was annulled under S. 43 of the Provincial insolvency Act on 21/04/1957. The insolvent filed three application the first of them under S. 5 of the Provincial Insolvency Act, read with S. 151 of the Code of Civil Procedure, to set aside the order of annulment; the second under S. 151 C. P. C. read with S. 5 of the Limitation Act, to condone the delay in filing the petition and extend the time for discharge; and the third, under S. 27(2) of the Provincial Insolvency Act, for extending the time for applying for discharge by two years. The District Munsif dismissed all the applications on theground that the debtor could avail himself of the remedy provided under S. 10(2) of the Provincial Insolvency Act and could not therefore invoke the provision of S. 5 of the Act. (3) The short question debated before us is whether an order of annulment passed under S. 43 of the Provincial Insolvency Act can be set aside at the instance of a debtor in an application field under S. 5 of the Act. (4) The material provision of the Insolvency Act, to which reference is necessary, are the following: "5(1) Subject to the provisions of this Act, the Court, in regard to proceedings under this Act, shall have the same powers and shall follow the same procedure as it has and follow in the exercise of original Civil Jurisdiction. (2) Subject as aforesaid, High Court and District Court, in regard to proceedings under this Act in Courts subordinate to them, shall have the same powers and shall follow the same procedure as they respectively have and follow in regard to civil suits. * * * * * * * (2) A debtor in respect of whom an order of adjudication, whether made under the Presidency Towns insolvency Act, 1909, or under this Act, has been annulled, owing to his failureto apply, or to prosecute an application for his discharge, shall not be entitled to present an insolvency petition without the leave of the Court by which the order of adjudication was annulled. Such court shall not grant leave unless it is satisfied either that the debtor was prevented by any reasonable cause from presenting or presecuting his application, as the case may be or that the petition is founded on facts substantially different from thosecontained in thepetition on which theorder of adjudication was made. 43(1) If the debtor does not appear on the day fixed for hearing his application for discharge or on such subsequent day as the Court may direct, or if the debtor does not apply for an order of discharge within the period specified by the Court, the Court may annul the order as it may think fit and if the adjudication is so annulled the provisions of selection 37 shall apply". (5) In Venegopalachariar v. Chinnulal Sowcar, 51 Mad LJ 209 : (AIR 1926 Mad 942) a Division Bench of the Madras High COurt, consisting of Phillips and Madhavan Nair, JJ. had to consider whether having regard to S. 5, Provincial Insolevency Act, read with S. 10(2) of the same Act, an insolvent, whose application had been dismissed for his absence, was entitled to apply for review. It was there contented that where an insolvency was annulled, the Court has power to review its order of annulment, and support for this contentions was sought from an unreported decision of that High Court in C. R. P. No.554 of 1925. The learned Judges held that S. 5 had to be read along with S. 10(2) and as the insolven had a right to apply afresh, he was not entitled to make application. (6) It is to be observed that S. 10(2) provides a definite remedy for a debtor in respect of whom an order of adjudication has been annulled and it gives him permission to file another appliication on the same facts, provided that he satisfies the Court the same facts, provided that he satifies the Court that he was prevented from prosecuting his former application by any reasonable cause. Section 5 of the Civil Procedure Code applicable subject to the Provision insolvency Act. Where, therefore Sec. 10(2) provides a definite remedy for a debtor,a remedy distinct from any remedy granted by the Civil Procedure Code, the reservation in S. 5 that the powers vested there under should be exercised subject to the provisions of the Act, would govern the situation, in 51 Mad LJ 209 : (AIR 1926 Mad 942) Phillips and Madhavan Nair JJ. definitely ruled that the intention of legislature is that in the class of cases coming under Section 43, the special procedure referred to in S. 10(2) should be followed and not the provisions of the Civil Procedure Code. Following this view, we must hold the provision of the Civil Procedure Code. Following this view, we must hold that the petitioner cannot invoke the provisions of the Civil Procedure Code by virtue of S. 5 of the Provincial insolvency Act. (7) Learned counsel for the petitioner, Sri venugopala Reddy, relied upon the Full Bench decision of the Madras High Court in Palani Goundan v. Official Receiver Coimbatore, ILR 53 Mad 287 : (AIR 1930 MAD 389) (FB) There it was held that "though if a debtor does not apply for discharge within theperiod specified, the court is bound to annual the adjudication and S. 43(1) is in this sense mandatory, yet if no express order of annulment is passed, as it should be passed, an annulment does not ipso facto take place, and that until such an express order is made, any one an apply for extention of time or discharge and the court can by virtue of Ss. 5 and 27(2) of the Act, read with S. 148 C. P. C. extend the period, whether the application for it is made before or after the specified period". (8) It is contended that in view of the Full Bench decision the provisions of Sec. 43 must beheld to be directory only and not mandatory and therefore, a power to grant further time carries with it a power to grant extention even after the expiry of the term originally fixed to extent the authority of the decision in 51 Mad LJ 209: (AIR 1926 Mad 942) must be held to have been shaken. It may be noted that the real ratio of that decision is that where an order of annulment is sought to be set aside, the aggrieved party has a specific remedy provided under S. 10(2) and therefore he cannot invoke to his aid the provisions of S. 5 of the Insolvency Act, which make the provisions of the Civil Procedure Code applicable. THIS part of the decision has not been touched by the Full Bench and therefore remains good law even today. We do not understand the decision of Full Bench as having had the effect of overruling the decision of the Madras High Court in 51 Mad LJ 209 : (AIR 1926 Mad 942) to the extent to which it held that by reason of the availablility of the remedy under S. 10(2) a debtor could not seek the benefits of S. 5.if so, the view taken by the lower court is correct. (9) On this conclusion, it follows that these revision petitions must fail, and they are accordingly dismissed. The respondents will have their costs in C. R. P. No. 1319 of 1958. There will be no order as to costs in the other two revision petitions. (10) Revision dismissed.